The Biden administration today released final Endangered Species Act regulations that restore several core components of the bedrock conservation law that the previous administration sought to undercut. Defenders of Wildlife, which pursued legal challenges to the 2019 regulations, expressed both appreciation and concern with the newly released regulations.
“While the regulations restore some essential wildlife protections, we were hopeful for far more than the marginal win the Biden administration delivered today. Our nation’s threatened and endangered species are under constant attack and the Endangered Species Act is the only thing standing between them and extinction,” said Jamie Rappaport Clark, president and CEO of Defenders of Wildlife. “We appreciate the administration’s work on this matter, but at the end of the day much work remains to be done to ensure the Endangered Species Act can fulfill its critical lifesaving mission.”
Among the positive changes in the final regulations are the reinstatement of automatic ESA protections for threatened species managed by the U.S. Fish and Wildlife Service known as the “blanket 4(d) rule” and the removal of regulations that injected economic considerations when determining whether a species should be listed under the ESA. The ESA requires listing decisions be made using the best available science and specifically prohibits consideration of related economic costs.
Of concern in the regulations, among other things, is retained 2019 language that allows the piecemeal destruction of critical habitat for threatened and endangered species; invites federal agencies to rely on speculative and unverified mitigation measures when analyzing agency actions that could jeopardize listed species or destroy or adversely modify critical habitat; and, invites federal agencies to ignore existing degraded conditions that have caused serious harm to listed species or critical habitat when considering the modification or relicensing of activities and existing facilities.
